I/P Engine, Inc. v. AOL, Inc. et al

Filing
815

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
I/P ENGINE, INC.
Plaintiff,
v.
AOL, INC., et al.,
Civil Action No. 2:11-cv-512
Defendants.
DEFENDANT GOOGLE INC.'S REPLY BRIEF IN SUPPORT OF ITS
MOTION TO SEAL AND REDACT PORTIONS OF TRIAL RECORD
Google has consistently sought to protect its highly confidential information during the
course of this litigation by sealing various pleadings, by moving to seal the courtroom for the
limited purpose of protecting the very information that is the subject of its current motion, and by
objecting to its public introduction at trial during conferences with the Court prior to and during
trial. (See, e.g., D.N. 347.) Still, Plaintiff argues that Google somehow waived its right to seek
such protection and that the Court has already rejected Google’s justification for protecting its
confidential business information. Plaintiff’s arguments are incorrect. The Court has not
considered the specific, highly confidential information Google now seeks to redact from the
trial transcript. Further, Google’s pre-trial efforts to protect this information prevented any
waiver because Google attempted to seal documents in advance of or contemporaneously with
their use or filing with the Court, as required in Level 3 Communications, LLC v. Limelight
Networks, Inc., 611 F. Supp. 2d 572, 583 (E.D. Va. 2009). Because Google has consistently
sought protection for the very information at issue in its motion and because there is no way to
protect Google’s confidential information other than redacting limited portions of the public
record, Google asks that the Court redact and seal the portions of the trial record that contain
Google's confidential information.
ARGUMENT
I.
Google Did Not Waive Its Right to Protect the Information at Issue in Its Motion
Because It Has Consistently Sought Protection for that Information.
Plaintiff does not cite any case requiring objections to the presentation of confidential
information be made on the record each time the information is presented. This is because it
cannot. The very case Plaintiff relies upon for its waiver argument allows a party to object to the
introduction of its confidential information either before or contemporaneously with its use in
open court. Level 3 Commc'ns, 611 F. Supp. 2d at 583. Because Google objected to the
presentation of its confidential information in motions and in conferences with the Court before
and during trial, Google did not waive any right to seek redress by not repeatedly interrupting the
trial each time confidential information was elicited.
Further, Plaintiff’s focus on which objections occurred on the record is misplaced. As
Plaintiff is well aware, the Court held conferences about the introduction of confidential
information in chambers and, thus, off the record. In fact, the trial transcript, including portions
Plaintiff cites in its opposition, shows that the discussion about closing the courtroom had
occurred off the record. (See Trial Tr., 367:10-20, 368:15-19.) Plaintiff has cited no authority
holding that the format of the parties’ previous discussions of confidentiality should affect
Google’s right to seek protection of its confidential information at this time. As Google timely
objected to the disclosure of its confidential information into the public record, there was no
waiver.
II.
The Court Has Not Yet Decided The Issue Before It Today – Whether to Protect
Google’s Highly Confidential Business Information Through Targeted Redaction of
the Public Trial Transcript.
Google has sought to protect the information at issue in this motion by sealing various
pleadings and by moving to close the courtroom. The Court declined to close the courtroom
during testimony about financial matters and closed the courtroom only during testimony
2
regarding Google’s source code. But deciding to close the courtroom for extended periods is
different than redacting small portions of the transcript. Even though the Court declined to close
the courtroom during testimony about damages and certain technical matters, the Court still may
now prevent additional disclosure of Google’s confidential financial and technical information
by redacting limited portions of the trial transcript. Accordingly, contrary to what Plaintiff
argues, the issue has not already been decided, and Google is entitled to seek redress for the
further public exposure of its confidential information. See Woven Elec. Corp. v. Advance
Group, Inc., 1991 U.S. App. LEXIS 6004, at *17-19 (4th Cir. Apr. 15, 1991) (unpublished, per
curiam) (remanding case to district court to determine which portions of public trial transcript
should be sealed to protect confidential information discussed in open court during trial).
Plaintiff’s attempt to distinguish Woven Electronics is unavailing. The basis of the
holding in Woven Electronics was not, as Plaintiff argues, that confidential information was
“mistakenly discussed in open court.” (D.N. 812, 5 n.3.) Rather, in Woven Electronics, the
plaintiff moved to seal the courtroom to prevent exposure of its trade secrets, and the court
denied the motion without explanation or a review of the confidential information at issue.
Woven Elec., 1991 U.S. App. LEXIS 6004 at *18. Because the jury found that the plaintiff’s
trade secrets had been misappropriated, the Fourth Circuit noted that trade secrets were indeed
involved in the case. Id. But the Fourth Circuit nowhere suggested that a jury finding
establishing that information is confidential must precede the redaction of a trial transcript
containing highly confidential business information. Id.
Plaintiff further claims that Woven Electronics “does not factually apply to this situation”
(D.N. 812, 5 n.3), when, in fact, the circumstances are equivalent. In Woven Electronics, like in
this case, a party actively sought protection for its confidential information prior to the trial, was
denied that protection, and, after the trial, sought to redact the confidential information from the
3
public record. See Woven Elec., 1991 U.S. App. LEXIS 6004 at *17-19; see also D.N. 803. In
both cases, “nothing [could] be done to remedy the situation at trial,” i.e., the presentation of
confidential information in public court. But in this case, as in Woven Electronics, the trial
transcript can be sealed after the fact to prevent further harm to Google. Id. at *18.
III.
Plaintiff’s Counsel Elicited Testimony About Google’s Technical Trade Secrets In
Open Court, But Now Seeks to Prevent Google From Protecting That Information.
Plaintiff attempts to downplay the sensitivity of technical information it elicited on the fly
when there was not an opportunity to close the courtroom by now claiming that testimony from
Google’s technical witness simply “refer[s] to Google’s accused systems,” but does “not discuss
the details of specific, highly confidential aspects of Google’s source code that were discussed in
a closed courtroom.” (D.N. 812, 3.) The fact that the testimony did not include a discussion
about source code is not dispositive. The testimony included highly confidential details about
the operation of Google’s systems, and this information is also entitled to protection from public
disclosure. In fact, Google’s counsel interrupted the cross examination of Google’s technical
witness, Bartholomew Furrow, to alert the Court that Plaintiff’s counsel was eliciting proprietary
testimony in open court. (Trial Tr., 1122:20-1123:1.) The Court responded that “we don't intend
to do that because we are not closing the courtroom this afternoon.” (Id., 1123:2-3.) Although
Plaintiff’s counsel stated that he would “try and speak in generalities,” he continued to elicit
proprietary testimony from Mr. Furrow during the open court session. (Id., 1123:6-12.) As the
Court made clear that the courtroom would not be closed again that day and Plaintiff’s counsel
continued eliciting highly confidential information in open court, Google’s counsel was left with
no option but to seek redress through this motion. It is unreasonable for Plaintiff to now oppose
the protection of the information Plaintiff’s counsel elicited in open court over Google's
objection.
4
IV.
Plaintiff Does Not Address Defendants’ Justifications for Protecting Confidential
Information.
Plaintiff never addresses the fundamental fairness issue at play in this motion. Google is
a defendant in this action. It did not choose to expose its highly confidential materials for its
own gains. Google was entitled to fully defend itself and identify the deficiencies in Plaintiff’s
case at trial without jeopardizing the business it has built on confidential information. Plaintiff’s
decision to bring suit against Google should not subject Google to the ongoing exposure of its
confidential information in public trial transcripts. The limited redactions Google has requested
would balance the public right to access judicial records with Google’s right to protect its
confidential business information. Plaintiff has not provided a justification for continuing to
allow Google's confidential information to remain in the public transcripts. As Woven
Electronics held, the mere fact that the information appeared in the public transcript does not
justify allowing it to remain there when the information is confidential.1
CONCLUSION
For the foregoing reasons and those presented in Defendant Google Inc.’s Memorandum
in Support of Motion to Seal and Redact Portions of Trial Record, the Motion should be granted.
1
Plaintiff’s assertion that Google is seeking to force trial spectators to “unremember” the
confidential information is a red herring. (See D.N. 812, 1.) Google is seeking to prevent
additional exposure of its confidential information and the additional harm Google’s business
will suffer as a result of even more parties having access to its confidential business information.
5
DATED: December 13, 2012
/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624.3000
Facsimile: (757) 624.3169
senoona@kaufcan.com
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: (415) 875-6600
Facsimile: (415) 875-6700
davidbilsker@quinnemanuel.com
davidperlson@quinnemanuel.com
Counsel for Google Inc., Target Corporation,
IAC Search & Media, Inc., and Gannett Co., Inc.
/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624-3000
Facsimile: (757) 624-3169
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: (571) 203-2700
Facsimile: (202) 408-4400
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
6
Atlanta, GA 94111
Telephone: (404) 653-6400
Facsimile: (415) 653-6444
Counsel for Defendant AOL Inc.
7
CERTIFICATE OF SERVICE
I hereby certify that on December 13, 2012, I will electronically file the foregoing with
the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF)
to the following:
Jeffrey K. Sherwood
Kenneth W. Brothers
DICKSTEIN SHAPIRO LLP
1825 Eye Street NW
Washington, DC 20006
Telephone: (202) 420-2200
Facsimile: (202) 420-2201
sherwoodj@dicksteinshapiro.com
brothersk@dicksteinshapiro.com
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: (757) 623-3000
Facsimile: (757) 623-5735
dschultz@cwm-law.cm
wrsnow@cwm-law.com
sstancliff@cwm-law.com
Counsel for Plaintiff, I/P Engine, Inc.
/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624.3000
Facsimile: (757) 624.3169
senoona@kaufcan.com
12103954v1
8

The Justia Federal District Court Filings & Dockets site republishes public litigation records retrieved from the US Federal District Courts. These filings and docket sheets should not be considered findings of fact or liability, and do not necessarily reflect the view of Justia.